Employee rights: Can a former employee sue a past employer?

On behalf of Vice & Hunter LLP posted in employee rights on Monday, March 5, 2018.

There are certain instances when employees could launch litigation against their former employers. When it comes to employee rights in Ontario, if an employee was fired he or she may have grounds to sue -- unless the employee was a union member. Union members should talk to a union steward or have a look at the collective agreement.

If the reason for the lawsuit is in regard to wages, an employee must either sue in a court of law or approach the Ontario Ministry of Labour (OML) with an employment standards claim. He or she can't do both. Small Claims Court may be an option if an employee is trying to recoup $25,000 or less from a past employer, whereas if it is more than that, the case could be headed to Superior Court.

There are pros and cons to going the OML route. It's usually easier than the court process, yet a court might often award a former employee who was fired more termination pay than he or she would have received under the Employee Standards Act (ESA). Also, if the former employer can prove the employee was an independent contractor, the ministry can't deal with the claim.

Obtaining legal advice before making the decision to take a former employer to court may be a wise move. A lawyer may be able to offer important advice to help a client become more aware of his or her employee rights before proceeding with any litigation. Ontario's Employment Standards Act is a lofty, complicated law that may take a lawyer's experience to help a client understand.